Abstract

If the law governing bureaucratic negligence had developed in South Africa before the coming of the democratic dispensation, it would have done so along the same lines that public authority liability in negligence had developed in other parts of the old Commonwealth. That is, through the expansion of the frontiers of the legal duty to take care in the law of delict. But that was not to be. Nor could the law possibly have developed by way of constitutional damages since no South African constitution prior to 1994 embodied a bill of rights. Given the context in which they functioned during the apartheid era, it is understandable that the courts were not prepared to impute liability to government functionaries who, as it were, discharged legitimate government business and carried out functions prescribed by legislation, the then supreme source of law.

Consonant with the courts' reluctance during the apartheid regime to hold against Government in matters of public adjudication, they found solace in the absence of a general theory of liability of public bodies that pervaded this branch of administrative law by clinging to that nebulous jurisprudential weasel called 'policy'. To them, public policy, of which the courts were, and still are, the prime and ultimate determinants, was not in favour of imposing liability on public authorities or, for that matter, extending the legal duty to take care in the field of public administration. This, in a nutshell, was the state of the law as at 27 April 1994. However, with the coming into effect on that date of an autochthonous Constitution entrenching an elaborate Bill of Rights incorporating strongly worded enforcement provisions empowering the courts to grant 'appropriate relief' and to make 'just and equitable' orders for the enforcement of the guaranteed rights, the South African perspective on public law remedies in general, and recovery of damages for governmental wrongs in particular, was destined to change. Happily, the Constitutional Court approached the matter from that angle: of change, transformation, progressive development of the common law and upholding governmental accountability.